PATRICIA A WALRATH V TREES INC
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STATE OF MICHIGAN
COURT OF APPEALS
PATRICIA A. WALRATH,
UNPUBLISHED
March 29, 2002
Plaintiff-Appellee,
No. 225007
Genesee Circuit Court
LC No. 99-065467-CH
v
TREES, INC., a Virginia Corporation, JIM W.
ALBRIGHT, BELLA FALK, NATALIE
FERMAN, DOUGLAS MULLEN, JOHN
WHITMAN, DOROTHY WHITMAN,
NATIONAL BANK OF CHICAGO and RTL
PARTNERS, LP,
Defendants,
and
KATL PROPERTIES,
Defendant-Appellant.
Before: Owens, P.J., and Holbrook, Jr., and Gage, JJ.
PER CURIAM.
In this action to quiet title, defendant KATL Properties appeals as of right from an order
of the trial court granting plaintiff’s motion for summary disposition under MCR 2.116(C)(10).
We affirm.
The land at issue consists of two parcels of unimproved, vacant property located in
Swartz Creek, Michigan. Plaintiff acquired tax deeds for the property at a 1997 tax sale held to
satisfy the delinquent 1994 property tax. KATL holds 1994 tax deeds on the property acquired
in satisfaction of earlier delinquent property taxes. At the hearing on plaintiff’s motion for
summary disposition, the trial court concluded that no genuine issue of material fact existed in
this case. The court found that KATL had received proper notice of reconveyance and had not
acted within the statutory time allotted to redeem the property. Accordingly, the court granted
summary disposition to plaintiff under MCR 2.116(C)(10).
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KATL’s argument on appeal centers on the notice it was given regarding redemption of
the property. First, however, we turn to plaintiff’s argument that KATL was not due notice,
which we reject. MCL 211.140 provides in pertinent part:
A writ of assistance or other process for the possession of property the title
to which was obtained by or through a tax sale, except if title is obtained under
section 131, shall not be issued until 6 months after the sheriff of the county
where the property is located files a return of service with the county treasurer of
that county showing service of the notice prescribed in subsection (2). The return
shall indicate that the sheriff made personal or substituted service of the notice on
the following persons who were, as of the date the notice was delivered to the
sheriff for service:
(a) The last grantee or grantees in the regular chain of title of the property,
or of an interest in the property, according to the records of the county register of
deeds. [Footnote omitted.]
The documents in record show that KATL was issued tax deeds to the property in issue in 1994.
Apparently these deeds were recorded with the Genesee Register of Deeds in July 1997.
Accordingly, KATL was due notice as the last grantee of an interest in the property. MCL
211.140(a).1 Further, because only a little over four years had passed between KATL’s
acquisition of its tax deeds and the initiation of the six-month redemption period, KATL had not
lost its opportunity to assert title. MCL 211.73a.
KATL argues that service of process was defective for two interrelated reasons. This
Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
A motion pursuant to MCR 2.116(C)(10) tests the factual basis underlying a
plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition when, except
for the amount of damages, there is no genuine issue concerning any material fact
and the moving party is entitled to damages as a matter of law. A court reviewing
such a motion must consider the pleadings, affidavits, depositions, admissions,
and any other evidence in favor of the opposing party and grant the benefit of any
reasonable doubt to the opposing party. [Stehlik v Johnson (On Rehearing), 206
Mich App 83, 85; 520 NW2d 633 (1994).]
First, KATL argues that because the Genesee County Sheriff was unable to locate
defendant Albright, plaintiff’s service was flawed and therefore ineffective. We disagree. The
record, including KATL’s own admissions, establish that KATL received actual notice by
1
Pursuant to the three-year rule, sale of property for unpaid taxes occurs three years after the
nonpayment. No other opportunity for the acquisition of tax deeds having occurred between
1994 and 1997, and there being no other indication that title was acquired in any other way
during these years, we conclude that KATL was the last grantee of an interest in the property.
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certified mail. MCL 211.73a2 “prohibits a party that received adequate notice of redemption
from raising more than six months after receiving that notice the question of the sufficiency of
that notice on the ground that some other party that was entitled to notice was not served.”
Halabu v Behnke, 213 Mich App 598, 605; 541 NW2d 285 (1995).
This leads to KATL’s second argument, which is that its actual notice was flawed
because the deputy sheriff who signed the notice was not duly authorized. KATL bases this
argument on a circuit court decision that found that this same man was not a duly sworn deputy
sheriff in 1997 (apparently because the man’s oath of office was not signed by the sheriff). This
says nothing about the man’s credentials in 1998, the year in which notice was sent to KATL by
certified mail. Accordingly, we conclude that KATL has not established the existence of a
material factual dispute. Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314
(1996).
We also reject KATL’s assertion that the redemption process was flawed because the
redemption rights of interested parties were extinguished in a “piecemeal” fashion. Again, we
disagree. In support of its argument, KATL quotes from White v Shaw, 150 Mich 270, 273; 114
NW2 210 (1907). However, the rule of White is not applicable when the property in issue is bid
off to a private purchaser. Detroit v Adamo, 234 Mich App 235, 243; 593 NW2d 646 (1999).
Therefore, pursuant to § 73a, the redemption period of a party having received proper notice is
not extended until all interested parties have received notice. Halabu, supra.
There being no material factual dispute that KATL did receive proper notice and failed to
redeem the property in the statutorily mandated time frame, the circumstances surrounding
service to the other party identified is irrelevant and summary disposition was properly granted
to plaintiff.
Affirmed.
/s/ Donald S. Owens
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage
2
MCL 211.73a states in pertinent part:
. . . A person who has himself been properly served with notice and failed to
redeem from a sale in accordance with this act, within the period herein specified,
shall not thereafter be entitled to question or deny in any manner the sufficiency
of notice upon the ground that some other person or persons entitled to notice was
not also served. . . .
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